Ciccone v Ritchie (No 1)

In Hague Convention proceedings, a child should be joined as a party only in the limited cases where doing so is in the child’s best interests. The court must consider whether the child’s views and interests can adequately be presented through Cafcass or other means, and must balance the benefits of participation against intrusion into the proceedings, possible harm and delay.

An older child’s opposition to return does not justify routine joinder. Relevant factors include the child’s age and maturity, the strength and independence of the child’s position, prior involvement in attempts to resolve the dispute, the presence of legal arguments not advanced by the adults, and whether separate representation would materially assist the court.

The mother applied under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the summary return of her 15-year-old son, Rocco, to New York. She alleged that the father had wrongfully retained him in England after an agreed Christmas contact period.

Rocco opposed return, had instructed solicitors, and applied to be joined as a party. The father supported the application and the mother opposed it, arguing that Rocco’s views could be presented through a Cafcass report. The central issue was whether party status was in Rocco’s best interests under the Family Procedure Rules 2010.

1. Application granted. Rocco was joined as a party to the Hague Convention proceedings because the judge was satisfied that joinder was in his best interests.
2. Under rule 16.2 of the Family Procedure Rules 2010, the child’s best interests are the threshold criterion for party status. The discretion to join the child arises only if that threshold is met. Party status remains exceptional in Convention proceedings.
3. In most cases, a Cafcass interview or report will sufficiently place the child’s wishes and feelings before the court. Separate representation may be necessary where the child’s views or interests may not otherwise be properly presented, particularly where the child raises legal arguments not advanced by the adult parties.
4. The relevant assessment is fact-sensitive. The court must balance the advantages of participation against the adverse effects of bringing the child into the forensic arena, including emotional harm, damage to family relationships and delay. An older child’s objection to return is not, by itself, a reason for joinder.
5. Joinder was justified by Rocco’s age and maturity, his clear opposition to return, his central involvement in the events and mediation, his sustained instructions to solicitors, his wish to respond to the parents’ arguments, and the potential for his participation to assist the court on habitual residence and arrangements for any return.
6. The ordinary Cafcass process would provide a largely passive account of Rocco’s wishes and would not enable him to advance arguments or respond to developing evidence and submissions. In the particular circumstances, confining him to that process would be detrimental and would not adequately serve his best interests.
7. A child joined in Hague Convention proceedings must act through a Children’s Guardian. The apparent difficulty where the child’s solicitor is also Guardian was noted. The judge indicated, without laying down a general rule, that Cafcass should assess the authenticity of the child’s objections and their relationship to the child’s welfare.